Copyright Confusion

 by Bonnie Boots

If you're creating anything, anything at all from a web site to an ebook to a cookbook for your church fundraiser, you need to know some basics of copyright.  And if you're like most people, everything you think you know about copyright is wrong. Case in point:

I was discussing a client's plans for her book when she mentioned a well-known work with a similar title. “Should I change mine?” she asked. “I don't want to violate anyone's copyright.”

I assured her she would not be in violation of anyone's copyright even if she used the exact same title, because a book title cannot be copyrighted. She could, for example, title her book anything from “Salem's Lot” to “Pet Semetary” with nary a fear of violating Stephen King's copyright.

My client was greatly surprised to learn this, as I expected she would be. One of the things I discovered when I stepped outside the world of print publishing and started meeting normal people is this: normal people don't know nothin' 'bout copyright.

And no wonder. Copyright laws are a mishmash of outdated rules once written to protect the legal owner of a work printed on paper, but now being stretched like Silly Putty™ to cover everything from MP3 files to YouTube videos. The whole field has become a legal quagmire that confuses even copyright lawyers.

The end result is a battered body of laws that are regularly violated by nearly everyone, because everyone–even the professionals–are confused by copyright.

Even its spelling seems mysterious to some.

“Dear Editor,” says an email I recently received.  “I'm an expert copyrighter. I have been copywriting for two years for myself and I'm ready to start copyrighting for other people.”

In a single sentence, this writer reveals that she's not actually an expert on anything. She's confused “writing copy,” the act of authoring, with  “copyright,” the laws that protect literary creations.

Copyright is spelled “copy right” because it invokes the creators right to protect their work from being copied.

Copyright is a form of protection provided to the creators of “original works of authorship,” including literary, artistic, musical and graphic arts and other creations.

Copyright protects the author's original expression as contained in a creative work.

Copyright does not usually extend to any idea, process, procedure, method, discovery, name, title or slogan. The laws that protect distinctive names, titles and slogans that are used in business or commerce are “trademark law.”

That's why, in the paragraphs above, I was able to write “Salem's Lot” without a copyright symbol, but had to write SillyPutty™  with the tiny “TM” that signifies it's a legal trademark.

Here's something else you probably believe about copyright: if you write the symbol © after your name, your work is protected and no one can copy it.

You're half right. But in this area, half right is all wrong.

The creator copyrights all original work by the very act of creating them. If you write a book, you own copyrights the moment you stop typing.

If you paint a picture, you own copyrights to it the moment you lay your brush down.

Writing “© Bonnie Boots 2007” or “copyright Bonnie Boots 2007” does not give me copyrights to this article.  I automatically own those rights by my act of creation. Writing “© Bonnie Boots 2007” is really a statement to anyone reading this article that I, Bonnie Boots, am the copyright holder of record.

In the case of “Salem's Lot,” the holder of copyright would likely be the publisher, Simon & Schuster. You can boldly title your book Salem's Lot and fear nothing but Stephen King sending a werewolf after you. But if you copy a single paragraph of Stephen King's story, it's his publisher–the holder of copyright-- that will sue the pants off you.

As the publisher, Simon & Schuster copyright more than just Stephen King's prose. They are copyrighting the book itself as a creation, including the choice of type fonts, the spacing of type, the arrangement of paragraphs on paper, the graphic design of the title–the whole kit and kaboodle.

In general use, then, it's a good idea to write “© your name and the year” on anything you create for public distribution. This informs people who are interested in legally using portions of your work that you are the copyright holder, and as such, you are the person they contact for permission.

If you discover someone has illegally copied your work and used it for commercial purposes, your have several ways to respond.

First, keep in mind that many people violate copyright simply because they don't know the law. If you find someone copying your work onto their web site, for instance, contact them, notify them they've violated your copyright, and ask them to either add your name and copyrights or remove your work. In most cases, this is all that's needed.

If the violation is more severe, and perhaps affects your business, you may want to have an attorney send a letter explaining they've violated your copyright and demanding they “cease and desist.”

I've seen many cases where this is all it took to get a violator to back off.

But if the violation is flagrant, and your business or income will be greatly affected by it, the issue may only be solved by a lawsuit. If it comes to that, you'll need to know this one great truth about copyright: Your copyright is worth exactly as much as you can spend defending it. And, as a trial copyright law once informed me, “He with the most money wins.”

Because copyright is such a gray area of the law, it can be very expensive to mount a case against someone that's violated your rights. If you're Mom & Pop's Corner Store and you sue Mom & Pop's MegaMultiMart, they can simple outspend you.

Even on a much smaller scale, you can find yourself outmatched. Here's an example I learned about when an attorney contacted me.

The attorney was considering representing a dollmaker I'd once interviewed for a magazine. The dollmaker was disabled. She lived on a tiny fund set up at the time of her disability.

This woman earned a small additional income by selling her unique cloth dolls to a nearby theme park. Hearing about this, I had contacted the woman and written an article about her. The photo that accompanied my article showed a tiny, worn woman sitting in front of a hardscrabble house, proudly holding an armful of her dolls.

The attorney wanted to know if I still had the original notes and photos from my interview. In a trial, my testimony, accompanied with notes and photos, would have been powerful proof that this woman was making and selling her dolls at the time in question.

The time was in question because of this: a day came when the theme park failed to place its regular order. The dollmaker called to ask why. To her horror, she found one of her neighbors, a woman who'd sometimes helped the dollmaker with sewing, had gone to the theme park and represented herself as the original designer of the doll pattern.

This imposter told the park that the disabled woman had leased rights to make dolls from the imposter's original pattern. That lease had expired, she said, and now she (the imposter) was taking over the production of the dolls. The theme park had then ordered dolls from her.

The attorney's investigation showed there was ample evidence that the dollmaker owned the copyright on the doll and that her business had been substantially hurt by a violation of this copyright. It seemed like an open-and-shut case.

Here's how it was resolved. The disabled dollmaker paid an attorney  $50 to write a letter demanding the imposter cease and desist. The imposter had another attorney fire back with a letter demanding proof.

The dollmaker paid her last bit of savings, $250, to her attorney to investigate her claim and send proof to the opposing attorney. That attorney asked his client, the imposter, how she wished to proceed. “It's an empty threat,” said the imposter. “She doesn't have a dime. She can't afford to sue.”

And there it ended. The disabled dollmaker did everything right. But in the end, her ability to defend herself was defined not by her © symbol, but by her meager savings. She could not afford a lawsuit. And so she lost.

Sadly, this case is not unique. This is simply the barest outline of some of the copyright issues I see people struggle with. If you're overcome with copyright confusion and need answers to questions about your rights, Google is a great place to begin. You'll find many web sites devoted to helping small business owners find information, including …

FindLaw for small business, "http://smallbusiness.findlaw.com/copyright/"

Copyright and Media Issues for Multimedia and Online Entrepreneurs "http://www.medialawyer.com/lec-copy.htm"

US Copyright office, with many publications and help files http://www.copyright.govInternetLink "http://www.copyright.gov/"/

 
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